Supreme Court remanded all three HISA constitutionality lawsuits back to their originating appeals courts Monday, extending a years-long legal battle over the Horseracing and Safety Integrity Act.
The nation’s highest court issued nearly identical summary dispositions for the three active petitions challenging HISA’s constitutionality. While technically granting consideration to each case, the justices opted to vacate the lower courts’ decisions rather than schedule full briefings and oral arguments.
Each case now returns to its respective federal appeals court—the Fifth, Sixth, and Eighth Circuits—for reconsideration in light of last Friday’s Supreme Court ruling in Federal Communications Commission vs. Consumers’ Research.
In that June 27 decision, justices rejected arguments that the funding mechanism for subsidized telecommunications services violated the non-delegation doctrine, ruling 6-3 that the FCC didn’t delegate excessive authority to a private company administering the program.
The non-delegation doctrine, which prohibits Congress from delegating legislative power to federal agencies without an “intelligible principle,” forms the central argument in all HISA-related cases. According to the American Bar Association Journal, the Supreme Court hasn’t invalidated a federal law using this doctrine since 1935.
The Fifth, Sixth, and Eighth Circuit appeals courts have reached differing conclusions on HISA’s constitutionality. While the Sixth and Eighth Circuits upheld the law entirely, the Fifth Circuit ruled that HISA’s enforcement provisions are unconstitutional while finding its rulemaking structure constitutional.
The Fifth Circuit case, initiated by the National Horsemen’s Benevolent and Protective Association (NHBPA), resulted in a July 2024 ruling that HISA’s enforcement provisions violated constitutional principles.
The Sixth Circuit petition originated from a lawsuit led by Oklahoma, West Virginia, and Louisiana. That appeals panel determined in March 2023 that Congressional amendments made HISA fully constitutional.
In the Eighth Circuit case, plaintiffs led by Bill Walmsley, Arkansas HBPA president, and Jon Moss, Iowa HBPA executive director, had sought Supreme Court review of a ruling that denied their preliminary injunction request to halt HISA and its Anti-Doping and Medication Control program.
With all appeals court judgments now vacated, the cases enter another waiting period that could extend a year or more as the courts reconsider their rulings. If parties disagree with the new decisions, they can petition the Supreme Court again—potentially adding several more years to litigation that began in 2021 and 2023.
Both sides portrayed Monday’s decisions as favorable to their positions.
The HISA Authority released an unattributed statement saying, “We are encouraged by the Supreme Court’s orders, which preserve the status quo and leave the Act undisturbed. HISA remains fully operational and will continue to be the national regulatory body overseeing safety and integrity in Thoroughbred racing while legal proceedings continue.”
The Authority’s statement emphasized that “the sole adverse decision from the Fifth Circuit (which the Supreme Court had previously paused) is now off the books, and the opinions of the federal district courts—all of which upheld the Act’s constitutionality in full—remain valid and operative.”
The NHBPA characterized the remand as a “renewed opportunity for the Fifth Circuit to address the fundamental constitutional issues raised by horsemen nationwide—and do so in a manner consistent with the highest Court’s recent guidance and precedent.”
Eric Hamelback, NHBPA chief executive officer, said in a press release: “We are confident that the Fifth Circuit, once again, will declare HISA to be unconstitutional.”
“Our well-founded arguments regarding HISA remain unchanged—it is deeply flawed, unconstitutionally delegates governmental authority to a private corporation and places unfair burdens on horsemen,” Hamelback said. “The HBPA will continue to fight for the constitutional rights of horsemen in the Court of Appeals and back at the Supreme Court again if we have to.”
Peter Ecabert, NHBPA attorney, argued that “HISA is fundamentally different from and more flawed than the statute in the Consumers’ Research case.”
“Under HISA, the FTC cannot appoint or remove Authority board members; plus the Authority was unlawfully granted sweeping enforcement powers that were not at issue in [the] Consumers’ Research” case.
In the Eighth Circuit case, attorney Frank Garrison told TDN: “This is a win for our clients. The Supreme Court vacated the Eighth Circuit’s decision upholding HISA as a constitutional delegation to a private entity. This signals the Court is still interested in addressing the issue.”
Representatives from the states involved in the Sixth Circuit case did not respond to requests for comment before publication deadline.
